D. Rangamma vs D. Chinnabbayi

Viswanatha Sastri, J.—This second Appeal relates to a claim for maintenance, past and future, by the Plaintiff, the widow of Doddapanenl Narasimham from joint family properties in the hands of his .surviving brother, the Defendant. The Plaintiff claimed Rs. 2,200 for past maintenance and Rs. 540 per year for future maintenance and prayed for a charge on a suitable portion of the joint family properties specified in Schedule A to the plaint. It was found by the Courts below that the annual income of the joint family properties was Rs. 1,800 per annum and that the Plaintiff''s husband and the Defendant, and their father were the only coparceners at the time of the former''s death.

The father died before the suit. The Plaintiff owns 8 acres of land absolutely as her stridhanam and Anr. 8 acres as a limited owner and heir to her husband''s separate property. The annual income derived by her from the 8 acres inherited from her husband has been found to be Rs. 750. The lower Appellate Court awarded Rs. 1,200 for arrears of maintenance and Rs. 300 per annum for future maintenance but directed that the maintenance was recoverable only from the income of and as a charge on the 8 acres inherited by the Plaintiff from her husband. In other words the joint family properties in which the platntiil''s husband had a half share when he died were wholly exonerated from liability for her maintenance. � The point in this Second Appeal is whether the decision of the lower Appellate Court is correct in law.

In support of its conclusion, the lower Appellate Court relies on a passage in Mayne''s Hindu Law, 11th edition, para. 696, page 828, which runs as follows:

It was held in one case that where a widow is, or ought to have been in possession of ''her husband''s separate property of the joint family property sufficient for her maintenance, she has no cause of action, while she is in possession thereof or till she exhausts those resources, to sue for maintenance (Italics (here into mine).

Two decisions Dattatraya Waman v. Rukhmabai ILR 33 Bom 50 (A) and Srinivasa Aiyar v. Ammani Ammal AIR 1931 Mad G68, are cited in support of this proposition, but an examination of these cases reveals that in both of them the widow who claimed maintenance was in possession of a portion of the joint family property and there was no question of her husband''s separate property being in her possession or enjoyment.

In AIR 1931 294 (Privy Council) at p. 298)(C) the Judicial Committee compared the. position of an illegitimate son of a shudra in relation to joint family property in the hands of his father''s coparceners to that of a widow and observed that:

the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but he is entitled as a member of''the family to maintenance out of that property ; that his position in this respect is analogous to that of widows and disqualified heirs to whom the law allows maintenance because of their exclusion from heri-tance and from a share on partition." Referring to the question whether an illegitimate son who happened to inherit the separate property of his father would be entitled to claim maintenance out of the joint family property, the Judicial Committee said:

Their Lordships express no opinion as to whether the illegitimate son would have any rights of maintenance out of the joint family property, if the father left separate property or if such property was not sufficient for his maintenance." This unsolved problem now calls for a solution in the analogous case of a Kindu widow.

In Jayanti Subbinh v. A;mielnmangam-ma ILR 27 Mad 45 , Bhashyam Iyengar, J., (Benson, J., concurring) laid down the following proposition:

When an undivided Hindu family consists of two or more males related as father and sons or otherwise and one of them dies leaving a widow, she has a right of maintenance against the surviving coparcener or coparceners quoad the share or interest of her deceased husband which has come by survivorship into the hands of the surviving coparcener or coparceners.

The right of the widow of a deceased coparcener in a joint Hindu, family to maintenance against the surviving coparceners quoad the share of her deceased husband has been held to he. an absolute right which accrues to her as a member of the joint family. Veerraju v. Narayanamma.(AIR 1933 Mad 159 . Widows of coparceners, though they are not themselves coparceners and do not take their husband''s shares by representation on their death, are entitled to a portion of the estate sufficient to maintain them in comfort according to the means of the family. The widow''s right to maintenance is truncated and vestigial relic of a right to a share in the family property. She gets her maintenance only in her right as a member of the joint iamilv. Commissioner -of Income-lax, Central and U. P. v. Mt. BhagwaU, 1947 2 Mad LJ 574: AIR 1947 PC 143.

In Madras it is now settled lav/ that a widow''s stridhana property or her earnings by her personal exertions should not be taken into consideration in fixing the amount of maintenance payable to her from the joint family estate in which her husband had a share. The reason is that her right to maintenance as a member of the joint family is absolute and unconditional and the duty or liability of the persons on whom her husband''s share has devolved is also unqualified subject to the rights of* the other members of the family- to be maintained out of the family estate and the discharge of the family liabilities. Nallapareddi Annapoornamma Vs. Pelleti Veeraraghava Reddi and Others, at p. 556) (G), Lingayya v. Kanakamma, ILR 38 Mad 153: AIR 1916 Mad 444 Sundari Ammal Vs. Venkatarama Sastrial and Others, (I). See also Bai Jya v. Ganpatram Kalidas, ILR 1941 Bom 483: AIR 1941 Bom 305.

Is the widow''s possession of her husband''s separate property as his hei a bar to her claiming maintenance from the joint family estate? In my opinion, it is not. If the, income from'' the property inherited by her from her husband is not sufficient for her maintenance, it must be conceded that she has a right to claim a proviision for maintenance from the joint family estate in which her husband had a share. At a time when the Hindu Women''s Rights to Property Act (XVIII of 1937) passed by the Central Legislature was in force but there was no parallel legislation in the State regarding agricultural land, it was held that though the widow inherited her deceased husband''s share in the non-agricultural property of the family, she could sue for maintenance out of the income of the joint family from its agricultural lands, but in fixing the amount of maintenance the income from the non-agricultural part of the estate in the widow''s possession would be taken into account. T. Sarojini Devi Vs. T. Sri Kristna,

On the same analogy, a widow inheriting her husband''s separate property as his heir could sue for maintenance from the joint family estate in which her husband had a share. The further question is whether the income from the separate property of her husband inherited by her, should be taken into account in determining the amount of maintenance awardable to her.

The point is somewhat bare of authority. In Shib Dayee v. Doorga Pershad, 4 NWP 63 at p. 72 (L), the Court (Turner and Spankie, JJ.) observed:

It may be admitted that where the husband dies, leaving separate estate and also an undivided share in joint family property, the widow''s maintenance should be first met out of the profits of the separate estate; but if those are insufficient we see nothing in the circumstances that the husband left separate estate which would debar the widow from having recourse to the joint estate to meet the deficiency.

The learned Judges give no reason for laying down this rule of marshalling for the benefit of the surviving coparceners and to the detriment of the heirs to the separated estate of the deceased coparcener. In Nallapareddi Annapoornamma Vs. Pelleti Veeraraghava Reddi and Others, at P. 556) (G) Abdur Rehman, J., observed with reference .to the separate property of her husband in the widow''s possession that "there is no doubt that it had to be taken into consideration in fixing her maintenance.

Pandrang. Row, J., the other member of the Bench emphasised that the right of the widow to maintenance was absolute and unconditional and observed that "the right of a Hindu widow to maintenance from out of the property belonging to her deceased husband is absolute and not subject to any condition that she should be in need of any allowance for maintenance.

That in the above passage, the learned Judge was referring to the husband''s share in the joint family property would appear from the concluding sentence of that paragraph which runs as follows:

The only condition if one may call it a condition - to be satisfied in a case like this is that the person who claims maintenance must show that she is the widow of a deceased coparcener and that the family has properly on. which the claim for maintenance can be fastened.

The only question in that case was whether a widow''s stridhanam property or private income should be taken into consideration in fixing the maintenance payable to her out of the joint family estate. In Kethireddi Kodandarami Reddi, by Mother and Next Friend, Seethamma Vs. Kethireddi Chenchamma, at p. 537: AIR 1930 Mad 479 at p. 482) (M), Anantakrishnu. Iyer, .;., while holding that the private funds of coparcener''s widow cannot be taken into consideration when awarding her maintenance out of joint property observed:

If the property in her possession be property belonging to the husband or to the estate- of the jc"a,t family, then the matter might (I have not to deods that question here) stand on a different footing.

Where a Hindu widow suing for maintenance is found to be in possession of joint family property she might be compelled to satisfy her demand, so far as it can be satisfied, first out of the property in her hands before she can come upon the rest of the joint family property in the hands of the other members of the joint family. Srinivasa Aiyar and Another Vs. Ammani Ammal, (B). Does the same rule apply when she is in possession of her husband''s separate property having inherited jt as his heir. If that property had been inherited by her sons or step-sons they would be bound to maintain her out of it. If she herself had inherited the separate property of her souk''.;.''; husband, her maintenance is exigible therefrom. The widow has an absolute right to enjoy or dispose- of the income from hersonless husband a separate estat0 and she is not a trustee for those who may succeed to that estate on her death. At the same time she is bound to defray the charges which are really payable out of that estate, as for instance, the maintenance of herself and the other members of the family whom her husband wag bound to maintain or whom she comes under a legal liability to maintain by reason of her inheriting his separate property. Kuthalinga v. Shanmuga, 50 Mad LJ 234 : AIR 1926 Mad 464 Ramaswamy Chetti v. Mangaikarasu ILK 18 Mad 113 at pp. 11.9, 120 (O); Lala Darbari Lal Vs. Lala Gobind Saran (P); Boda Viraraju Vs. Vetcha Venkataratnam and Others, (Q); AIR 1934 29 (Privy Council) The position hero is that there are two estates liable for her maintenance, her deceased husband''s separate property which she inherited as his heir and his interest in joint family property which passed by survivorship to the other coparceners. If by reason of the Hindu Women''s Rights to Property Acts, Central fund Local, a widow succeeds both the share of'' her husband in joint family property and to hi- separate; property, then the right of maintenance allowed, to her under the ordinary Hindu Law would not be available, the right of maintenance being given by reason of her exclusion from inheritance. If, however, by reason of the inapplicability of the Central Act to regulate succession to agricultural lands, the widow is not entitled to her deceased husband''s share in the agricultural lands of the joint family and they pass by survivorship to the other coparceners, her right to maintenance from those properties within the limits of her husband''s share, does not stand extinguished. ILR (1945) Mad 81: AIR 1944 Mad 1 401. There is no reason in justice or equity for compelling the widow to pay herself her maintenance out of the separate property of her deceased husband exonerating his share of the joint family lands from liability. There is no reason for. holding that the. separate property of the husband is the primary fund for payment of her maintenance and his share of the joint family property is only secondarily liable. The liability is common to both sets. of properties though they are not specifically charged with such payment. Jk 39 of the Transfer of Property Act protects the right of the> widow to maintenance from her husband''s share of joint family property against improvident alienations by the surviving coparceners. Where property belonging to different owners is subject to a common charge for the maintenance of a widow, each of thorn is liable to contribute according to the value of the property of which he is the owner.. Sri Rajah Bommadevara Venkatarayulu Naidu Bahadur Zamindar Garu Vs. Sri Rajah Lanka Venkata Rattamma Garu, A property or fund which is equally liable with Anr. to pay a debt should bear its just share of the debt. This rule of contribution is based on justice, equity and good conscience. See Story on Equity Jurisprudence (3rd English Editiom page 205. If the widow is in possession of her husband''s separate property as his heir, she is bound to pay herself the pro rata maintenance exigible from that property & her claim would stand discharged to that extent. As a consequence, her husband''s share of the joint family properties in the hands of the surviving coparceners would be liable only for the balance of the maintenance.

Applying these principles to the Present case, the income of the Plaintiff''s husband''s share of joint family lands in the possession of the Defendant has been determined at Us. 900. The income from the separate property of the husband in the Plaintiff''s possession as his heir has been determined to be Rs, 750. Ths Plaintiff claimed maintenance at Rs. 540 per annum from the date of suit and Rs. 2,200 for arrears from the joint family properties alone. I have held that her maintenance is a common charge on both sets of properties disagreeing with the view of the lower Appellate Court. The amount claimed is not unreasonable if regard is had to the income of both sets of properties. The Plaintiff will therefore be entitled to recover by way of maintenance from the Defendant a sum of rupees two-hundred (Rs. 20O per annum) from 12th September, 1950, the date of suit for the duration of her life. The payments of maintenance will be made by the Defendant before the 12th of September each year commencing from 12th September, 1951. As regards past arrears of maintenance, the Defendant shall pay the Plaintiff Rs. 600. The amounts of maintenances to be paid, by the Defendant to the Plaintiff for the period prior to the suit as well as for the future specified in Schedule A to the plaint. The decree of the lower Appellate Court is reversed. The Appellant will get proportionate costs here and in the lower Appellate Court, The order of the trial Court as to costs will stand. Leave refused.